Chief Justice of Pakistan (CJP) Umar Ata Bandial said on Monday that the Supreme Court had taken suo motu notice of the parliamentary crisis last month after consultations were held between 12 SC judges, all of whom agreed that it was a “constitutional matter”.
On April 3, following then National Assembly deputy speaker Qasim Suri’s dismissal of a no-confidence motion against then prime minister Imran Khan and the subsequent dissolution of the National Assembly, Justice Bandial had taken suo motu notice of the matter. He had also made it clear that all orders and actions initiated by the prime minister and president regarding the dissolution of the National Assembly will be subject to the court’s order, which had eventually gone against the then government and restored the assembly.
The Supreme Court’s notice was criticised by the PTI lawmakers, with Fawad Chaudhry branding it “unfortunate”.
The chief justice, however, maintained today that the notice was justified. “Everyone believed that it was a constitutional matter so notice should be taken.”
Justice Bandial made the remarks during the hearing of a presidential reference seeking the top court’s opinion on Article 63-A of the Constitution, which is related to the disqualification of lawmakers over defection.
A five-member bench, headed by the chief justice, and comprising Justice Ijazul Ahsan, Justice Mazhar Alam Khan Miankhel, Justice Munib Akhtar and Justice Jamal Khan Mandokhail, is hearing the reference.
He further remarked that suo motu notice was taken at the bench’s discretion and not on anyone’s wishes.
At the start of the hearing today, the chief justice remarked that it was the court’s duty to protect the Constitution, adding that the interpretation of Article 63-A was essential for parliamentary democracy.
Justice Bandial said legal questions related to the Article were valid even after filing of references against dissident PTI lawmakers in the Election Commission of Pakistan (ECP).
Justice Ahsan observed that all parties would be bound to respect the court’s decision.
The PML-N had earlier filed an application, requesting the court to put off the hearing till May 17 since the party’s counsel, Makhdoom Ali Khan, would be out of the country till then.
When the hearing resumed today, the chief justice directed that Khan be asked to return to the country sooner.
Judge seeks respect for judiciary
Meanwhile, PTI’s counsel, Babar Awan, said he wanted to assist the apex court in the case, adding that he “greatly respected” the court.
Justice Mandokhail remarked that the same respect should be spread among the public. “Tell the people that the court also opens at night. The Balochistan High Court also opened at 2:30am.”
Awan replied that it (having the public respect the judiciary) was the information ministry’s job, arguing that Articles 62 and 63 should be read together.
Following his ouster, PTI Chairman Imran had, in a rally on April 13, asked the judiciary to explain why it felt the need to open its doors at midnight on April 12, hours before the voting on the no-confidence motion took place.
The IHC has since explained that “as a constitutional court, it ensures that cases relating to extreme urgency are presented at any time after the notified timings.”
The high court’s decision to resume court activity at the unusual hour came after a pre-emptive petition was filed asking the court to restrain Imran from de-notifying Gen Qamar Javed Bajwa as chief of the army staff. The then government had denied having any such plans.
‘Court has to look at constitutional principles’
The court had to interpret the Article for future generations, the CJP remarked.
He observed that while an MNA’s seat could become vacant under both Article 63 (related to disqualification over defection) and Article 64 (related to resignation) but they were not similar.
The court had to determine the purpose of the Articles, he noted, adding that it had to look at constitutional principles rather than individual actions.
The Supreme Court was not concerned with the 25 dissident lawmakers of the PTI, Justice Bandial said.
He asked Awan why his client (PTI) did not submit an application if the party was concerned at the non-implementation of the apex court’s opinion regarding Senate elections. “There is a difference between the court and the executive.”
The court decides after an incident has taken place whether it was right or wrong, he observed.
Justice Bandial remarked that the executive had “failed” to fulfil its responsibility in the Reko Diq case.
He again said that if someone wanted to bring a matter to the court’s attention, they should file an application.
Awan responded that it was not his client’s but the ECP’s “failing” that the SC’s opinion on Senate elections was not implemented.
The chief justice then asked Awan to show any application that had subsequently been filed by the PTI.
Awan said President Dr Arif Alvi had remained silent even after the Lahore High Court (LHC) “made derisive observations” against him.
He was referring to the remarks made by a single bench of the LHC — which were later suspended — in a case related to Hamza Shehbaz’s oath-taking as Punjab chief minister.
In his order, Justice Jawad Hassan observed: “Both the decisions of this court despite having binding effect have been ignored deliberately by the President of Pakistan as well as by the Governor of the Punjab. The governor through his conduct has also made himself ‘impracticable’ for the oath to be made before him.”
Later, a division bench of the high court had suspended the observations while hearing an intra court appeal filed by the PTI.
During the SC hearing today, Chief Justice Bandial asked Awan to submit an application if the observations regarding the president were incorrect.
Meanwhile, the court also issued notices to respondents on a petition filed by Imran seeking a lifetime ban from contesting elections for defecting lawmakers.
The petition named the ECP, NA speaker, Federation of Pakistan through the secretary cabinet division, and secretary of the ministry of law and justice as respondents.
The incumbent government was considering withdrawing the presidential reference which was why it was waiting for the new attorney general, MQM-P’s lawyer, Azhar Siddique, said.
Justice Bandial responded that he hoped the federal government would allow the Article’s interpretation to be completed.
Previously, the SC’s opinion on the presidential reference related to Senate elections was not implemented, Siddique contended, adding that he had repeatedly written to the ECP in this regard.
“Political parties are reluctant to implement the decisions on presidential references,” the MQM-P counsel said.
Justice Ahsan observed that the court’s decision of blocking the Hasba bill proposing the appointment of an ombudsman for enforcing ‘Islam’s morality code’ which was taken on a presidential reference had been implemented.
Everyone has to implement the decision on a presidential reference, he added.
The chief justice observed that the court had not received any application related to non-implementation of the decision, adding that an appropriate verdict would be announced if one was received.
Subsequently, the hearing was adjourned till tomorrow.
Ahead of its ouster, the PTI government had filed a presidential reference for the interpretation of Article 63-A, asking the top court about the “legal status of the vote of party members when they are clearly involved in horse-trading and change their loyalties in exchange for money”.
In the reference, President Dr Arif Alvi also asked the apex court whether a member who “engages in constitutionally prohibited and morally reprehensible act of defection” could claim the right to have his vote counted and given equal weightage or if there was a constitutional restriction to exclude such “tainted” votes.
He also asked the court to elaborate whether a parliamentarian, who had been declared to have committed defection, would be disqualified for life. Alvi cautioned that unless horse-trading is eliminated, “a truly democratic polity shall forever remain an unfilled distant dream and ambition”.
“Owing to the weak interpretation of Article 63-A entailing no prolonged disqualification, such members first enrich themselves and then come back to remain available to the highest bidder in the next round perpetuating this cancer.”
The reference had been filed at a time when the then-opposition claimed the support of several dissident PTI lawmakers ahead of voting on the no-confidence resolution against then-prime minister Imran Khan. Eventually, the dissident lawmakers votes were not needed in Imran’s removal, as the opposition managed to stitch together support from government-allied political parties.
However, the role of dissident lawmakers was crucial in the election of opposition candidate Hamza Shehbaz as the Punjab chief minister who bagged 197 votes, including from 24 PTI dissidents.
According to Article 63-A of the Constitution, a parliamentarian can be disqualified on grounds of defection if he “votes or abstains from voting in the House contrary to any direction issued by the parliamentary party to which he belongs, in relation to election of the prime minister or chief minister; or a vote of confidence or a vote of no-confidence; or a money bill or a Constitution (amendment) bill”.
The article says that the party head has to declare in writing that the MNA concerned has defected but before making the declaration, the party head will “provide such member with an opportunity to show cause as to why such declaration may not be made against him”.
After giving the member a chance to explain their reasons, the party head will forward the declaration to the speaker, who will forward it to the chief election commissioner (CEC). The CEC will then have 30 days to confirm the declaration. If confirmed by the CEC, the member “shall cease to be a member of the House and his seat shall become vacant”.